Definition of Federal Election Activity, 8926-8932 [06-1679]

Agencies

• Federal Election Commission

[Federal Register Volume 71, Number 35 (Wednesday, February 22, 2006)]
[Rules and Regulations]
[Pages 8926-8932]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-1679]


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FEDERAL ELECTION COMMISSION

11 CFR Part 100

[Notice 2006-2]


Definition of Federal Election Activity

AGENCY: Federal Election Commission.

ACTION: Final rules.

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SUMMARY: The Federal Election Commission (``Commission'') is revising 
its rules defining ``Federal election activity'' (``FEA'') under the 
Federal Election Campaign Act of 1971, as amended (``FECA''). These 
final rules modify the definitions of ``get-out-the-vote activity'' and 
``voter identification'' consistent with the ruling of the U.S. 
District Court for the District of Columbia in Shays v. FEC. The final 
rules retain the definition of ``voter registration activity'' that the 
Commission promulgated in 2002, and provide a fuller explanation of 
what this term encompasses in response to the district court's 
decision. The Commission is also revising the definition of ``in 
connection with an election in which a candidate for Federal office 
appears on the ballot'' for FEA purposes. Further information is 
provided in the supplementary information that follows.

DATES: Effective Date: These rules are effective on March 24, 2006.

FOR FURTHER INFORMATION CONTACT: Ms. Mai T. Dinh, Assistant General 
Counsel, Mr. J. Duane Pugh Jr., Senior Attorney, or Ms. Margaret G. 
Perl, Attorney, 999 E Street, NW., Washington, DC 20463, (202) 694-1650 
or (800) 424-9530.

SUPPLEMENTARY INFORMATION: The Bipartisan Campaign Reform Act of 2002 
(``BCRA''), Public Law No. 107-155, 116 Stat. 81 (2002), amended FECA 
by adding a new term, ``Federal election activity,'' to describe 
certain activities that State, district, and local party

[[Page 8927]]

committees must pay for with either Federal funds or a combination of 
Federal and Levin funds.\1\ 2 U.S.C. 431(20) and 441i(b)(1). The FEA 
requirements apply to all State, district, and local party committees 
regardless of whether they are registered as political committees with 
the Commission. The term also affects fundraising on behalf of tax-
exempt organizations. National, State, district, and local party 
committees are prohibited from soliciting or directing non-Federal 
funds to tax-exempt entities organized under 26 U.S.C. 501(c) that 
engage in FEA or make other disbursements or expenditures in connection 
with a Federal election. 2 U.S.C. 441i(d)(1). Also, Federal candidates 
and officeholders may make only limited solicitations for funds on 
behalf of tax-exempt entities organized under 26 U.S.C. 501(c) whose 
principal purpose is to conduct certain types of FEA. 2 U.S.C. 
441i(e)(4).
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    \1\ ``Federal funds'' are funds subject to the limitations, 
prohibitions, and reporting requirements of the Act. See 11 CFR 
300.2(g). ``Levin funds'' are funds raised by State, district, and 
local party committees pursuant to the restrictions in 11 CFR 300.31 
and disbursed subject to the restrictions in 11 CFR 300.32. See 11 
CFR 300.2(i).
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    BCRA identifies four types of FEA: Voter registration activity 
(Type I); voter identification, get-out-the-vote activity (``GOTV 
activity''), or generic campaign activity (Type II); public 
communications that refer to clearly identified Federal candidates and 
that promote, support, attack or oppose (``PASO'') a candidate for that 
office (Type III); and services provided by an employee of a State, 
district, or local political party committee who spends more than 25 
percent of that individual's compensated time on activities in 
connection with a Federal election (Type IV). See 2 U.S.C. 
431(20)(A)(i)-(iv). Only the first two types of FEA are implicated in 
this rulemaking. The Commission defined the different components of 
Types I and II FEA in 11 CFR 100.24. Final Rules and Explanation and 
Justification on Prohibited and Excessive Contributions: Non-Federal 
Funds or Soft Money, 67 FR 49064, 49066 (July 29, 2002) (``Soft Money 
E&J'').
    In 2004, the Commission's rules defining ``voter registration 
activity,'' ``GOTV activity,'' and ``voter identification'' were 
reviewed by the U.S. District Court for the District of Columbia in 
Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C. 2004), aff'd, 414 F.3d 76 (DC 
Cir. 2005) (``Shays''). The district court invalidated certain aspects 
of these regulations because they did not satisfy the first step of the 
test set out in Chevron, U.S.A., Inc. v. Natural Resources Defense 
Council, Inc., 467 U.S. 837 (1984) (``Chevron'').\2\ Shays, 337 F. 
Supp. 2d at 98-100, 102-103. The district court held that other aspects 
of these regulations satisfied the Chevron step one analysis, but the 
2002 NPRM did not fully notice the approach taken in the final rule, as 
required by the Administrative Procedure Act, 5 U.S.C. 553(b)(3) 
(``APA''). Shays, 337 F. Supp. 2d at 101, 105-107. The district court 
remanded the regulations to the Commission for further action 
consistent with the court's decision. Id. at 130. The Commission did 
not appeal the district court's ruling on these regulations.
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    \2\ The first step of the Chevron analysis, which courts use to 
review an agency's regulations, asks whether Congress has directly 
spoken to the precise questions at issue. The second step considers 
whether the agency's resolution of an issue not addressed in the 
statute is based on a permissible construction of the statute. See 
Shays, 337 F. Supp. 2d at 51-52 (citing Chevron, 467 U.S. at 842-
43).
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    In response to the district court's decision, the Commission 
published a Notice of Proposed Rulemaking on May 4, 2005. See Notice of 
Proposed Rulemaking on the Definition of Federal Election Activity, 70 
FR 23068 (May 4, 2005) (``2005 NPRM or NPRM''). The NPRM proposed 
possible modifications to the definitions of ``voter registration 
activity,'' ``GOTV activity,'' and ``voter identification.'' The NPRM 
also proposed several changes to the definition of ``in connection with 
an election in which a candidate for Federal office appears on the 
ballot'' in 11 CFR 100.24(a)(1). The public comment period for the NPRM 
closed on June 3, 2005. The Commission received written comments from 
14 commenters. The Commission held a public hearing on August 4, 2005, 
at which six witnesses testified. After the hearing, the Commission 
reopened the comment period until September 29, 2005 to allow 
interested parties to submit additional information or comments. See 
Notice to Reopen Comment Period on the Definition of Federal Election 
Activity, 70 FR 51302 (August 30, 2005). The Commission received two 
additional comments during this period. All comments and a transcript 
of the public hearing are available at https://www.fec.gov/law/law_
rulemakings.shtml under ``Definition of Federal Election Activity.'' 
For purposes of this document, the terms ``comment'' and ``commenter'' 
apply to both written comments and oral testimony at the public 
hearing.
    These final rules remove the exception to the definitions of ``get-
out-the-vote activity'' and ``voter identification'' for associations 
or other similar groups of candidates for State and local office. These 
final rules also remove the reference to ``within 72 hours of an 
election'' from the definition of ``get-out-the-vote activity'' and 
amend the definition of ``voter identification'' so as to include 
``acquiring information about potential voters, including, but not 
limited to, obtaining voter lists.'' The final rules retain the current 
definition of ``voter registration activity,'' and provide a fuller 
explanation of what this term encompasses. The Commission is also 
revising the definition of ``in connection with an election in which a 
candidate for Federal office appears on the ballot'' to remove 
restrictions on the rules for special elections to odd-numbered years.
    Under the APA, 5 U.S.C. 553(d), and the Congressional Review of 
Agency Rulemaking Act, 5 U.S.C. 801(a)(1), agencies must submit final 
rules to the Speaker of the House of Representatives and the President 
of the Senate and publish them in the Federal Register at least 30 
calendar days before they take effect. The final rules that follow were 
transmitted to Congress on February 10, 2006.

Explanation and Justification

A. Definitions of ``Voter Registration Activity'' (11 CFR 100.24(a)(2)) 
and ``GOTV Activity'' (11 CFR 100.24(a)(3))

    BCRA uses the terms ``voter registration activity'' and ``get-out-
the-vote activity'' within the definition of FEA. Congress did not, 
however, define those terms. See 2 U.S.C. 431(20)(A)(i)-(ii).\3\ In 
2002, the Commission defined ``voter registration activity'' to mean 
``contacting individuals by telephone, in person, or by other 
individualized means to assist them in registering to vote. Voter 
registration activity includes, but is not limited to, printing and 
distributing registration and voting information, providing individuals 
with voter registration forms, and assisting individuals in the 
completion and filing of such forms.'' 11 CFR 100.24(a)(2). Similarly, 
Commission regulations define ``GOTV activity'' to mean

[[Page 8928]]

``contacting registered voters by telephone, in person, or by other 
individualized means, to assist them in engaging in the act of 
voting.'' 11 CFR 100.24(a)(3). This provision also includes a non-
exhaustive list of examples of different types of GOTV activity. See 11 
CFR 100.24(a)(3)(i)-(ii).
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    \3\ The statute states that voter registration activity (Type I 
FEA) is FEA only when it is conducted 120 days or fewer before a 
regularly scheduled Federal election. See 2 U.S.C. 431(20)(A)(i). 
BCRA also specifies that GOTV activity (Type II FEA) is FEA only 
when it is conducted ``in connection with an election in which a 
candidate for Federal office appears on the ballot,'' see 2 U.S.C. 
431(20)(A)(ii), which the Commission defined in 11 CFR 100.24(a)(1), 
as discussed below.
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    The Shays plaintiffs argued that the requirement that voter 
registration and GOTV activity ``assist'' in the registration of voters 
or the act of voting impermissibly narrowed the statutory definition of 
``FEA'' by excluding activities that only ``encourage'' registration 
and voting. See Shays, 337 F. Supp. 2d at 98-99, 102-103. The district 
court did not invalidate these definitions on Chevron grounds. Instead, 
the district court found that the Commission's interpretation of 
section 431(20)(A) is permissible under the Chevron step one analysis 
because it does not conflict with expressed Congressional intent. 
Shays, 337 F. Supp. 2d at 99-100, 102-103. Specifically, the district 
court noted that ``it is possible to read the term `voter registration 
activity' to encompass those activities that actually register persons 
to vote, as opposed to those that only encourage persons to do so 
without more. Moreover, the Court [did not] find based on the record 
presented that the `common usage' of the term `voter registration 
activity' necessarily includes the latter type of activities.'' Shays, 
337 F. Supp. 2d at 99 (internal citation omitted); see also Shays, 337 
F. Supp. 2d at 102-03 (GOTV activity). With respect to Chevron step 
two, the district court concluded that the ``exact parameters of the 
Commission's regulation[s] are subject to interpretation,'' and absent 
further guidance, the plaintiffs' challenges were not ripe. Shays, 337 
F. Supp. 2d at 100 (voter registration activity); see also Shays, 337 
F. Supp. 2d at 105 (GOTV activity). The district court concluded that 
if the parameters were sufficiently broad, it would alleviate any 
concerns that the regulations would ``unduly compromise[] the Act.'' 
Shays, 337 F. Supp. 2d at 100 and 105 (citing Orloski v. FEC, 795 F.2d 
156, 164 (D.C. Cir. 1986)).
    The district court remanded these regulations to the Commission 
because the court found that the NPRM for 11 CFR 100.24 did not provide 
sufficient notice that the Commission might limit the definitions of 
``voter registration'' and ``GOTV activity'' to activities that 
``assist'' individuals to register to vote or to vote. Shays, 337 F. 
Supp. 2d at 101, 105-107; see also Notice of Proposed Rulemaking on 
Prohibited and Excessive Contributions; Non-Federal Funds or Soft 
Money, 67 FR 35654 (May 20, 2002) (``2002 NPRM''). The district court 
concluded that the final rules could not have been reasonably 
anticipated based on the 2002 NPRM proposals and therefore interested 
parties did not have an adequate opportunity to comment. Shays, 337 F. 
Supp. 2d at 101, 105-107.
    The Commission's 2005 NPRM proposed retaining the ``assist'' 
requirement in these definitions. The purpose of retaining the 
``assist'' requirement is to exclude ``mere encouragement'' from the 
scope of the rules. In proposing to retain the ``assist'' requirement, 
the Commission was concerned that regulations that included activities 
that merely encouraged people to register and vote may sweep too 
broadly. The proposed rule addresses the financing of the voter 
registration and GOTV activities that Congress sought to regulate. At 
the same time, the Commission reviewed the statutory language and the 
legislative history of the FEA provision and found no evidence that 
Congress intended to capture every State or local party event where an 
individual ends a speech with the exhortation, ``Don't forget to 
vote!'' Both Congress and the Commission are aware that such speech is 
ubiquitous and often spontaneous in an election year.
    The 2005 NPRM sought public comment on how to address the district 
court's concerns that the scope of the 2002 rules might be too narrow. 
In addition, the Commission asked whether there were any particular 
activities that should be specifically included in, or excluded from, 
these provisions.
    Several commenters supported the Commission's proposal to retain 
the current definitions of ``voter registration activity'' and ``GOTV 
activity.'' These commenters argued that the ``assist'' requirement 
effectuates BCRA and gives State, district, and local party committees 
a rule that is understandable. Some commenters asserted that including 
``encouragement'' to register and/or to vote would broaden the reach of 
these provisions to cover nearly every activity of State, district, and 
local party committees. These commenters stated that local party 
committees would find it particularly difficult to comply with more 
expansive rules. According to these commenters, most local parties are 
small volunteer-centered organizations that operate largely 
autonomously from the State and national committees. Many local party 
committees do not have the resources to comply with the complexities of 
Federal law, and their response to BCRA has been to avoid voter 
registration and GOTV activities that might trigger Federal reporting 
and financing requirements. These commenters urged the Commission not 
to expand the FEA definitions because any further expansion of these 
definitions could preclude local parties at the grassroots level from 
answering simple voter inquiries about where to register or from 
referring voters to those who could legally assist them in registering.
    Other commenters urged the Commission to amend the definitions of 
``voter registration activity'' and ``GOTV activity'' to include 
``encouragement'' to register and/or to vote, arguing that this 
approach would better reflect Congressional intent, and that the 
``assist'' requirement improperly narrows the reach of these 
provisions. These commenters urged the Commission to adopt a standard 
such that a ``mere exhortation to register to vote,'' without any 
additional activity to assist the individual in doing so, would be 
covered by the FEA definitions and funding requirements. These 
commenters argued that any concerns about the FEA definition sweeping 
too broadly are alleviated by the fact that the rule applies only to 
State, district, or local party committees \4\ and that the funding 
requirements on voter registration activity are limited to the period 
of 120 days before a Federal election.
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    \4\ However, as noted above, the FEA definition also affects the 
ability of national, State, district or local party committees and 
Federal candidates and officeholders to raise funds for tax-exempt 
entities organized under 26 U.S.C. 501(c).
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    The Commission has decided to retain the current definitions of 
``voter registration activity'' and ``GOTV activity,'' which exclude 
mere encouragement of registration and/or voting from these 
definitions. See 11 CFR 100.24(a)(2) and (a)(3). The district court 
emphasized that ``it is possible to read the term `voter registration 
activity' to encompass those activities that actually register persons 
to vote, as opposed to those that only encourage persons to do so 
without more. Moreover, the Court [did not] find based on the record 
presented that the `common usage' of the term `voter registration 
activity' necessarily includes the latter type of activities.'' Shays, 
337 F. Supp. 2d at 99 (internal citation omitted); see also Shays, 337 
F. Supp. 2d at 102-03 (GOTV activity).
    The Commission's regulations are consistent with BCRA, which seeks 
to regulate the funds used to influence Federal elections. The final 
rules regulate actual voter registration activity

[[Page 8929]]

without capturing incidental speech, such as responding to voter 
inquiries by providing publicly available information, such as the 
address on the FEC's website for the National Voter Registration Form 
or the 1-800 number of a State's Division of Elections. Should a State, 
district, or local party expend funds actually to register individuals 
to vote, such uses of funds are clearly covered by the Commission's 
regulations.
    Moreover, in the Commission's extensive enforcement experience, 
general exhortations to register to vote and to vote are so common in 
political party communications that including encouragement to register 
to vote and to vote would be overly broad, is not necessary to 
effectively implement BCRA, and could have an adverse impact on 
grassroots political activities. As the Supreme Court has repeatedly 
stressed, where First Amendment rights are affected, ``[p]recision of 
regulation must be the touchstone.'' Edenfield v. Fane, 507 U.S. 761, 
777 (1993). The Commission notes that these definitions will not lead 
to circumvention of FECA because the regulations prohibit the use of 
non-Federal funds for disbursements that State, district, and local 
parties make for those activities that actually register individuals to 
vote. Additionally, many programs for widespread encouragement of voter 
registration to influence Federal elections would be captured as public 
communications under Type III FEA.
    Commenters who supported including ``encouragement'' in the 
definitions noted that these definitions do not exactly match the 
definition of ``voter registration and get-out-the-vote activities'' in 
11 CFR 100.133. Section 100.133 exempts from the definition of 
``expenditure'' the costs of non-partisan activity ``designed to 
encourage individuals to register to vote or to vote.'' However, the 
district court agreed with the Commission that these regulations are 
not in conflict. Shays, 337 F. Supp. 2d at 100. Indeed, these 
regulations are consistent because both provisions promote the public 
policy goal of encouraging civic participation through voter 
registration and voting. For reasons similar to the policy rationale 
that underlies the exception to the funding restrictions on 
expenditures in section 100.133, the Commission declines to impose FEA 
funding restrictions on State, district, and local party committees' 
mere ``encouragement'' of registering to vote or voting.
    Therefore, the Commission is reaffirming its interpretation of the 
statutory FEA provision in its definitions at 11 CFR 100.24(a)(2) and 
(a)(3).
1. Examples of ``Voter Registration Activity''
    As stated above, the district court concluded that the scope of the 
``assist'' requirement was unclear. Shays, 337 F. Supp. 2d at 100. 
Commenters disagreed about whether particular State, district, or local 
party committee activities would meet the current definition of ``voter 
registration activity.'' The Commission has decided to include some 
additional examples in this Explanation and Justification to provide 
more guidance on which activities are, and are not, covered by this 
rule. These examples are illustrations only.\5\
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    \5\ All of these examples exclude public communications that 
PASO any Federal candidate and, therefore, would not raise the 
possibility of otherwise qualifying as Type III FEA. See 11 CFR 
100.24(b)(3).
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    The following are examples of activity that are Type I FEA voter 
registration activity:
    1. At a county fair, a local political party committee sponsors a 
booth. The booth has banners reading, ``Don't forget to register to 
vote!'' Party staff at the booth provides voter registration forms and 
answers questions about completing and submitting the forms. They also 
accept completed forms and mail them to the appropriate governmental 
agency.
    2. A State party committee conducts a phone bank contacting 
possible voters. The party staff making the calls encourages the 
individuals to register to vote, provides information about how to 
register to vote, and offers to mail registration forms with a prepaid 
postage envelope to the individuals.
    Both of these examples illustrate activity where a State, district, 
or local party committee is providing potential voters with personal 
assistance in registering to vote. Both examples go beyond general 
statements encouraging voter registration. In example 1, providing 
registration forms and personal assistance in completing and submitting 
those forms are actions that actually assist individuals in registering 
to vote. In example 2, the State party committee is affirmatively 
contacting individual potential voters to provide them with 
registration information and offering to provide registration forms. 
Therefore, these examples would satisfy the definition of ``voter 
registration activity'' and are FEA if conducted within 120 days of a 
Federal election.
    The following is an example of activity that is not Type I FEA 
voter registration activity:
    3. A guest speaker at a local party committee rally for a mayoral 
candidate extols the virtues of the candidate and concludes his remarks 
by stating: ``Don't forget to register and vote!'
    In contrast to examples 1 and 2 above, example 3 involves a State 
or local party committee speaker merely encouraging registration and 
voting without any additional concrete action that would be considered 
personal assistance to potential voters. General statements of 
encouragement alone are not enough to trigger the FEA definition. 
Congress did not express an intent in BCRA to require that Federal 
funds be used for an entire State or local party committee rally on 
behalf of non-Federal candidates on the basis of speeches that merely 
encourage the audience to register to vote. Additionally, this type of 
party event would not lead to actual or apparent corruption of Federal 
candidates or officeholders. Under BCRA, Congress continued to allow 
these organizations to use non-Federal funds for this type of State, 
district, or local activity generally, and there is no legislative 
history or administrative record that general encouragement to vote is 
similar to the other corrupting activity Congress was concerned with 
when it required certain activity to be funded with Federal dollars.
    Congress, as a policy matter, has historically recognized the 
importance of encouraging voters to register to vote and to vote in a 
variety of laws. See, e.g., FECA, 2 U.S.C. 431(9)(B)(ii) (exception to 
the definition of ``expenditure'' for non-partisan voter registration 
efforts and GOTV activity); Voting Rights Act of 1965, 42 U.S.C. 
1973b(a)(1)(F)(iii) (a jurisdiction which wants to terminate ``Section 
5'' coverage must show that it has ``engaged in * * * constructive 
efforts, such as expanded opportunity for convenient registration''); 
National Voter Registration Act of 1993, 42 U.S.C. 1973gg(b)(1) 
(purpose of the Act is to ``establish procedures that will increase the 
number of eligible citizens who register to vote in elections for 
Federal office''); Help America Vote Act of 2002, 42 U.S.C. 15483 
(standards for computerized statewide voter registration lists and 
registering to vote by mail). The Commission believes that BCRA should 
be interpreted to be faithful to these purposes.
2. Examples of ``GOTV Activity''
    The Commission's 2002 definition of ``GOTV activity'' included 
examples of activity that meet the ``assist'' requirement for GOTV 
activity in 11 CFR 100.24(a)(3)(i) and (ii). The first example is 
``[p]roviding to individual voters, within 72 hours of an election, 
information such as the date of the election, the times when polling 
places

[[Page 8930]]

are open, and the location of particular polling places.'' 11 CFR 
100.24(a)(3)(i) (emphasis added). The district court rejected the 
plaintiffs' challenge to the 72-hour provision in the first example at 
11 CFR 100.24(a)(3)(i), noting that the general definition of ``GOTV 
activity'' in section 100.24(a)(3) makes clear that the list of 
examples is non-exhaustive. Shays, 337 F. Supp. 2d at 103. Similar to 
its Chevron step two analysis of the ``assist'' requirement discussed 
above, the district court held that the 72-hour provision was not ripe 
for review because it was unclear what activity the Commission would 
consider to be GOTV activity if conducted outside of this 72-hour 
window. Shays, 337 F. Supp. 2d at 105.
    The NPRM sought public comment as to whether to revise the list of 
examples of GOTV activity in 11 CFR 100.24(a)(3)(i)-(ii) to address the 
district court's ruling on the 72-hour example. Most of the commenters 
urged the Commission to remove the 72-hour example, although for 
different reasons. Some commenters argued that GOTV activity occurs 
weeks and months before an election, and this example could suggest 
that no GOTV activity is covered until 72-hours before the election. 
Other commenters claimed that this example created confusion for State, 
district, and local party committees as to the timing, method, and 
content of communications that might be considered GOTV activity. Many 
commenters noted that it was unclear how the Commission would apply the 
72-hour provision with regard to absentee balloting and early voting, 
which is now available in most states. One commenter argued that the 
Commission should include an exhaustive, yet narrow, list of covered 
activities in the definition of ``GOTV activity,'' while another 
commenter urged the Commission to eliminate all of the regulatory 
examples.
    Activity conducted earlier than 72 hours before the election that 
meets the general definition of ``GOTV activity'' in 11 CFR 
100.24(a)(3) is Type II FEA. As the Commission explained in the Soft 
Money E&J, the non-exhaustive list of examples in section 
100.24(a)(3)(i)-(ii) is merely illustrative of the types of activity 
that would satisfy the definition of ``GOTV activity.'' See Soft Money 
E&J, 67 FR at 49067. For example, a State party committee could hire a 
consultant a month prior to the election to design a GOTV program for 
the State party committee and recruit volunteers to drive voters to the 
polls on election day. The consultant's work performed well before the 
72-hour time period would be considered Type II FEA and must be paid 
for by the State party committee only with Federal funds or an 
allocated mix of Federal and Levin funds. Also, the definition of 
``GOTV activity'' would apply equally to actions taken with regard to 
absentee balloting or early voting.
    The 72-hour provision in the first example was included in the rule 
as an effort to provide an example of what activity would clearly be 
covered by the definition of ``GOTV activity,'' and was not intended to 
exclude activity in any other timeframe. The Commission based the 
example on its understanding that the execution of most GOTV activity 
tends to occur within 72 hours of an election. However, based on the 
comments received by the Commission, it appears that the 72-hour 
provision in the first example has given rise to uncertainty and 
potential confusion over whether GOTV activity conducted earlier in the 
election cycle would not be covered by the rule. No such time 
limitation exists, and the removal of the 72-hour reference will 
clarify that this has always been the case. Therefore, the Commission 
is removing the phrase ``within 72 hours of an election'' from the 
example in 11 CFR 100.24(a)(3)(i). The remainder of the example in 
section 100.24(a)(3)(i) gives proper guidance as to the type of 
activity covered by the rule, regardless of when it occurs inside the 
Type II FEA window.

B. Definition of ``Voter Identification'' (11 CFR 100.24(a)(4))

    In 2002, the Commission's regulations defined ``voter 
identification'' to mean ``creating or enhancing voter lists by 
verifying or adding information about the voters' likelihood of voting 
in an upcoming election or their likelihood of voting for specific 
candidates.'' See 11 CFR 100.24(a)(4) (2002) (emphasis added). This 
definition did not include the initial acquisition of a voter list 
because the Commission concluded that political party committees might 
acquire voter lists for a number of reasons other than for voter 
identification in connection with an election in which a Federal 
candidate appears on the ballot. Such reasons include fundraising and 
off-year party building activities. See Soft Money E&J, 67 FR at 49069. 
The district court in Shays held that the Commission's decision not to 
include acquisition of voter lists in the definition of ``voter 
identification'' failed Chevron step one. Shays, 337 F. Supp. 2d at 
108.
    To comport with this ruling, the NPRM proposed revising section 
100.24(a)(4) to include the acquisition of voter lists in the 
definition of ``voter identification.'' Most of the commenters agreed 
that the Commission is required to include the acquisition of voter 
lists.
    The NPRM also sought comment on whether the Commission should use 
the date a voter list is purchased or the date a voter list is used to 
determine whether the acquisition of a voter list occurs ``in 
connection with an election in which a candidate for Federal office 
appears on the ballot,'' as defined in 11 CFR 100.24(a)(1). A few 
commenters urged the Commission to adopt a ``use'' test to foreclose 
the possibility of State, district, and local party committees 
purchasing a list outside the FEA period and then using it inside the 
FEA period. Most commenters, however, supported the ``purchase'' test, 
noting the burdensome tracking that would be required of State, 
district, and local party committees under a ``use'' test. In addition, 
these commenters noted that a ``purchase'' test would not unfairly 
burden State, district, and local party committees that acquire lists 
in odd-numbered years for voter identification uses outside of the FEA 
windows. Some commenters also noted that a ``use'' test would 
effectively eliminate the FEA window for voter identification because 
any subsequent ``use'' of a voter list would reach back and 
retroactively convert a non-FEA acquisition into FEA.
    The Commission has decided to amend the definition of ``voter 
identification'' to include ``acquiring information about potential 
voters, including, but not limited to, obtaining voter lists.'' See 
revised 11 CFR 100.24(a)(4). Under the new rule, the acquisition of a 
voter list is considered FEA if it occurs after the earliest filing 
deadline for the ballot in an even-numbered year and for those States 
that do not conduct primaries, on January 1 of an even-numbered year, 
and after the date is set for a special election in which a candidate 
for Federal office appears on the ballot. See 11 CFR 100.24(a)(1) and 
100.24(b)(2). Under these revised rules, State, district, and local 
party committees should use the date the information was purchased, 
rather than the date the information was used, to determine whether the 
acquisition of a voter list falls within the FEA timeframes. The 
revised rule states that ``[t]he date a voter list is acquired shall 
govern whether a State, district, or local party committee has obtained 
a voter list.'' See revised 11 CFR 100.24(a)(4). Any acquisition of 
voter lists during the FEA period would come within this revised 
definition, and must be paid for with Federal funds or an allocated mix 
of Federal and Levin funds. The purchase of any voter list before the 
FEA period begins may be made with an allocated mixture of

[[Page 8931]]

Federal and non-Federal funds under 11 CFR 106.7(c). Any subsequent use 
of the voter list during the FEA period will not be considered a 
separate FEA cost unless the political party is also ``enhancing'' the 
voter list by verifying or adding information. See 11 CFR 100.24(a)(4).
    This approach has a number of benefits. It provides a sensible, 
bright line rule. In addition, this interpretation is consistent with 
the Commission's reporting requirements, as political party committees 
are required to report disbursements for a voter list at the time of 
purchase. See 11 CFR 300.36. Finally, the Commission's rule allows for 
off-year party fundraising and party building activities not connected 
to Federal elections by using voter lists acquired outside of the FEA 
window without automatic imposition of the FEA rules.
    The NPRM also sought public comment on a proposed exception to the 
definition of ``voter identification'' when a State party committee 
uses the voter list in connection with an election where no Federal 
candidates appear on the ballot. See NPRM, 70 FR at 23070. Most of the 
commenters who discussed this proposed exception opposed it as 
exceeding the Commission's statutory authority under BCRA. The 
Commission has decided not to adopt any new exceptions to the voter 
identification provision at this time. Additionally, this proposed 
exception would be challenging for State, district, and local party 
committees to apply and for the Commission to enforce because it is 
difficult to determine when a voter list is, or is not, ``used'' by a 
State party committee. Finally, any acquisitions of voter lists to be 
used in odd-numbered year, non-Federal elections would most likely 
occur outside the FEA timeframes, and would therefore not be considered 
FEA.

C. Exceptions for Non-Federal Candidate Associations in GOTV Activity 
(11 CFR 100.24(a)(3)) and Voter Identification (11 CFR 100.24(a)(4))

    The 2002 regulatory definitions of ``GOTV activity'' and ``voter 
identification'' included exceptions for associations or similar groups 
of candidates for State or local office or of individuals holding State 
or local office (collectively ``non-Federal candidate associations''). 
See 11 CFR 100.24(a)(3) and (4). The Commission intended that these 
exceptions would keep State and local candidates' grassroots and local 
political activity a question of State, not Federal law. See Soft Money 
E&J, 67 FR at 49067. The Commission decided not to interpret BCRA in a 
way that would ``undertake * * * a vast federalization of State and 
local activity without greater direction from Congress.'' See id., 67 
FR at 49067.
    The district court found that these exceptions ``run[] contrary to 
Congress's clearly expressed intent'' as enacted in BCRA and fail step 
one of Chevron. See Shays, 337 F. Supp. 2d at 104 and 107 n.83. The 
district court also observed that the Supreme Court rejected the 
federalism concerns underlying these exceptions in McConnell v. FEC, 
540 U.S. 93 (2003). See Shays, 337 F. Supp. 2d at 104 (citing 
McConnell, 540 U.S. at 186).
    To comply with the district court's opinion, the NPRM proposed 
removing from both definitions the exceptions for non-Federal candidate 
associations. See NPRM, 70 FR at 23072. The NPRM also sought comment on 
the impact of removing the exceptions, and whether other alternatives 
could address the Commission's concerns while still satisfying 
Congressional intent as determined by the Shays court. See id., 70 FR 
at 23069 and 23070.
    Several commenters agreed that BCRA or the district court's 
decision in Shays requires the removal of these exceptions from the 
definitions of ``GOTV activity'' and ``voter identification.'' One 
commenter urged the Commission to leave the definition of ``FEA'' 
undisturbed ``to the maximum extent permitted by the court's judgment 
in Shays.'' All of the commenters who addressed the issue believed that 
non-Federal candidate associations would be required to use Federal 
funds for FEA in the absence of these exceptions. No commenter provided 
any specific alternatives that would address the Commission's concerns 
that gave rise to these exceptions and satisfy Congressional intent as 
determined by the Shays court.
    In light of these comments and the district court's reasoning, the 
Commission has decided to remove the exception for non-Federal 
candidate associations from the definitions of ``GOTV activity'' and 
``voter identification.'' See revised 11 CFR 100.24(a)(3) and (4). 
These revisions require that non-Federal candidate associations use 
only Federal funds to pay for FEA. See 2 U.S.C. 441i(b)(1) and 11 CFR 
300.32(a)(1).

D. Type II FEA Time Periods (11 CFR 100.24(a)(1))

    BCRA provides that voter identification, GOTV activity, and generic 
campaign activity constitute FEA only when ``conducted in connection 
with an election in which a candidate for Federal office appears on the 
ballot (regardless of whether a candidate for State or local office 
also appears on the ballot).'' 2 U.S.C. 431(20)(A)(ii). In 2002, the 
Commission defined this period as beginning on the date of the earliest 
filing deadline for a primary election ballot for Federal candidates in 
each particular State and ending on the date of the general election, 
up to and including any runoff election date. See 11 CFR 
100.24(a)(1)(i) (2002). For States that do not hold primary elections, 
the period begins January 1 of each even-numbered year. Id. For special 
elections in which Federal candidates are on the ballot, the period 
begins when the date of the special election is set and ends on the 
date of the special election. See 11 CFR 100.24(a)(1)(ii). By its 
terms, the 2002 rule for special elections applied in odd-numbered 
years only. Id.\6\
---------------------------------------------------------------------------

    \6\ None of these rules was challenged in Shays.
---------------------------------------------------------------------------

1. FEA Time Period for Special Elections During Odd-Numbered Years
    In the NPRM, the Commission proposed eliminating the odd-numbered 
year limitation on the Type II FEA time period for special elections. 
NPRM, 70 FR at 23071 and 23072. All of the commenters who addressed 
this topic supported the proposed change. The Commission has decided to 
remove the limitation from former 11 CFR 100.24(a)(1)(ii) that made it 
applicable only to those special elections that take place in odd-
numbered years. For any special elections that are scheduled in even-
numbered years, the same Type II FEA time period should apply. 
Therefore, the phrase ``In an odd-numbered year,'' no longer appears in 
revised 11 CFR 100.24(a)(1)(ii).
2. Other Proposed Changes to Type II FEA Time Period.
    The NPRM also sought comment on limited exceptions to the Type II 
FEA time period in 11 CFR 100.24(a)(1). See NPRM, 70 FR 23071 and 
23072. The Commission received several comments on the issues raised in 
the NPRM. The Commission is promulgating an Interim Final Rule in a 
separate rulemaking to address these issues.

Certification of No Effect Pursuant to 5 U.S.C. 605(b) (Regulatory 
Flexibility Act)

    The Commission certifies that the attached final rule will not have 
a significant economic impact on a substantial number of small 
entities. The basis for this certification is that the organizations 
affected by this rule are State, district, and local party committees, 
which are not ``small

[[Page 8932]]

entities'' under 5 U.S.C. 601. These not-for-profit committees do not 
meet the definition of ``small organization,'' which requires that the 
enterprise be independently owned and operated and not dominant in its 
field. 5 U.S.C. 601(4). State political party committees are not 
independently owned and operated because they are not financed and 
controlled by a small identifiable group of individuals, and they are 
affiliated with the larger national political party organizations. In 
addition, the State political party committees representing the 
Democratic and Republican parties have a major controlling influence 
within the political arena of their State and are thus dominant in 
their field. District and local party committees are generally 
considered affiliated with the State committees and need not be 
considered separately. To the extent that any State party committees 
representing minor political parties might be considered ``small 
organizations,'' the number affected by this rule is not substantial.

List of Subjects in 11 CFR Part 100

    Elections.

0
For the reasons set out in the preamble, Subchapter A of Chapter 1 of 
Title 11 of the Code of Federal Regulations is amended as follows:

PART 100--SCOPE AND DEFINITIONS (2 U.S.C. 431)

0
1. The authority citation for 11 CFR part 100 continues to read as 
follows:

    Authority: 2 U.S.C. 431, 434, and 438(a)(8).


0
2. In section 100.24, paragraph (a) is revised to read as follows:


Sec.  100.24  Federal Election Activity (2 U.S.C. 431(20)).

    (a) As used in this section, and in part 300 of this chapter,
    (1) In connection with an election in which a candidate for Federal 
office appears on the ballot means:
    (i) The period of time beginning on the date of the earliest filing 
deadline for access to the primary election ballot for Federal 
candidates as determined by State law, or in those States that do not 
conduct primaries, on January 1 of each even-numbered year and ending 
on the date of the general election, up to and including the date of 
any general runoff.
    (ii) The period beginning on the date on which the date of a 
special election in which a candidate for Federal office appears on the 
ballot is set and ending on the date of the special election.
    (2) Voter registration activity means contacting individuals by 
telephone, in person, or by other individualized means to assist them 
in registering to vote. Voter registration activity includes, but is 
not limited to, printing and distributing registration and voting 
information, providing individuals with voter registration forms, and 
assisting individuals in the completion and filing of such forms.
    (3) Get-out-the-vote activity means contacting registered voters by 
telephone, in person, or by other individualized means, to assist them 
in engaging in the act of voting. Get-out-the-vote activity includes, 
but is not limited to:
    (i) Providing to individual voters information such as the date of 
the election, the times when polling places are open, and the location 
of particular polling places; and
    (ii) Offering to transport or actually transporting voters to the 
polls.
    (4) Voter identification means acquiring information about 
potential voters, including, but not limited to, obtaining voter lists 
and creating or enhancing voter lists by verifying or adding 
information about the voters' likelihood of voting in an upcoming 
election or their likelihood of voting for specific candidates. The 
date a voter list is acquired shall govern whether a State, district, 
or local party committee has obtained a voter list within the meaning 
of this section.
* * * * *

    Dated: February 10, 2006.
Michael E. Toner,
Chairman, Federal Election Commission.
[FR Doc. 06-1679 Filed 2-21-06; 8:45 am]
BILLING CODE 6715-01-P